Covid-19 related absence dismissal was not automatically unfair

Jonathan Gidney
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The Leeds Employment Tribunal has recently determined one of the first dismissals arising out of the coronavirus pandemic in Rogers v Leeds Laser Cuttings Ltd [2021] No. 1803829/2020, writes Jonathan Gidney.

The Claimant (who had less than two years’ service) left work and did not return on the grounds that he believed the virus presented a ‘serious and imminent’ danger at work. The Claimant’s son was clinically extremely vulnerable with sickle cell anemia and was required to shield. The Claimant was dismissed for going absent without permission for a period of four weeks. He claimed that he had been dismissed for refusing to work because the coronavirus presented a serious and imminent danger in the workplace and that his dismissal for that reason was automatically unfair pursuant to section 100(1)(d)-(e) of the Employment Rights Act 2010.

Employment Judge Anderson dismissed the Claimant’s claim. In so doing she applied the tests set out in Oudahar v Esporta Group Ltd [2011] IRLR 739, EAT by asking (i) were there circumstances of danger which the Claimant believed to be serious and imminent, (ii) did he take or propose to take appropriate steps to protect himself or other persons from the danger or to communicate those circumstances to his employer? If these criteria are not satisfied section 100(1)(d)(e) are not engaged. If they are engaged the Tribunal should then ask was the reason for the dismissal that the Claimant took or had proposed to take those steps? In applying that test to the facts of the case the Judge ruled that the Claimant did not believe the danger to be in the workplace, but in the world at large. He had not raised his concerns about the virus and his employer’s safety measures prior to leaving and his employer had taken all the steps that it reasonably could to protect its workforce by staggering arrival and departure times and breaks, regular sanitizing of contact points such as door handles, clocking in machine, toilets etc, respacing of workstations two metres apart and installing single direction travel corridors marked onto the floor.

The decision is to be welcomed by Employers grappling with the various and increasing HR issues that the pandemic has caused. There are two cautionary observations however: Firstly the Tribunal noted that the dismissal would have been unfair pursuant to section 98(4) of the ERA had the Claimant had qualifying service because of way it had been handled and secondly, in rejecting the s100(1)(d)(e) claim, judicial emphasis had been placed on the fact that the Respondent had taken all reasonable steps to make its employees safe and that the Claimant had not raised his concerns about a lack of or inadequate safety measures before he walked out. Thus, other cases with slightly different facts could have reached a different conclusion.

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